Hamilton v Colonial Life Insurance Company (Trinidad) Ltd
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Mitchell, J. |
| Judgment Date | 12 March 2004 |
| Neutral Citation | KN 2004 HC 9 |
| Docket Number | SKBHCV 0113 of 2001 |
| Court | High Court (Saint Kitts and Nevis) |
| Date | 12 March 2004 |
High Court
Mitchell, J.
SKBHCV 0113 of 2001
Glenford Hamilton, Jason Hamilton with him, for the claimant.
Anthony Gonsalves, Clayton Perkins with him, for the defendant.
Employment law - Dismissal — Claimant was employed by defendant under a contract in writing — Claimant's employment was terminated — Claimant stated that termination of employment was wrongful and that the defendant owed her unpaid commissions and other monies — Defendant stated they were entitled to give one month's notice and that they paid the claimant more than she was due — Protection of Employment Act — Judgment that there was no evidence that the claimant's dismissal was unlawful — Defendant paid what they was supposed tot pay — Claim dismissed.
Sonia Hamilton was employed by Colonial Life in St Kitts under a contract in writing. Her employment has been terminated. She says it was wrongful, and in any event, Colonial Life owes her unpaid commissions and other monies. Colonial Life say they were entitled to give her one month's notice, and they have paid her more than she was due. The Court is to determine which one is correct.
Colonial Life is a regional company with its headquarters in Barbados and branches in the islands of the West Indies. There is a branch office in Basseterre. In the Federation, Colonial Life is in the business of selling insurance and financial products and services to customers. Mrs. Hamilton was employed at the time of her dismissal as its Branch Administration Manager. Her written contract of employment is dated 10 May 1991.
On 1 March 1996, Mrs. Hamilton was given a salesman's contract to permit her to supplement her basic salary by receipt of commissions. Clause 4.6 of this contract provided for a commission of a percentage of the premium in the first and second year and on renewal of various types of insurance policies. Clause 4.7 provided that in the case of a class of policy not mentioned in clause 4.6, the company would fix and determine the first year commission and renewal commissions. In September 1999, Mrs. Hamilton as agent sold a customer in St Kitts an Executive Flexible Premium Annuity (EFPA) Plan in the sum of $12,000,000.00. By the terms of the contract with the customer, the customer was to invest the $12 million over the three-year period September 1999 to September 2002. At the end of that period, the customer had the option to withdraw all deposits made or to reinvest the full amount or any part of it on terms to be agreed. The customer would commence its investment program with an initial deposit of $3 million, and thereafter make deposits of $250,000.00 on a monthly or less frequent basis as determined by the customer. This was not an insurance policy, but a form of interest-bearing demand deposit. The commission in clause 4.6 of the salesman's contract did not apply to this type of sale. Clause 4.7 did. Mrs. Hamilton was offered and agreed to accept a commission. An agreed memo of 27 September is in evidence. It supplies a schedule for payment to Mrs. Hamilton of commissions on this contract with this particular customer as:
The customer paid a total of $5.95 million in the first year, and Mrs. Hamilton was paid a commission of 1.5% on this sum in the amount of $89,250.00. In the following year, the customer paid a total of $3.5 million, and Mrs. Hamilton was paid a similar commission amounting to $52,500.00. Subsequently, in year three, the customer paid another $4.7 million. By the time of this last payment, Mrs. Hamilton was no longer with Colonial Life.
| 1st Year | 1.5% |
| 2nd Year | 1.5% |
| 3rd Year | Nil |
On 4 December 2000, Mrs. Hamilton returned to work after recuperating from an operation. She had been off work on 10 weeks sick leave. On 19 December, she was given a notice of termination of her employment dated 4 December. No reason was given for the termination. In one of the witness statements for Colonial Life there is a suggestion that she had been a difficult employee. There was testimony that, in fact, the St Kitts branch office was not profitable, and Colonial Life had taken a decision to downsize. Whatever the reason, none was given to her. She was given a letter thanking her for her services and enclosing a cheque for $32,595.98. The letter is in evidence. It refers to an attached statement giving a breakdown of this sum. Mrs. Hamilton says she never got the statement. Colonial Life says it was with the letter and cheque. It does not matter. The termination letter which she got refers to it. She may have forgotten that she received it. If she had not got it and had requested a copy, there is no reason to believe that she would not have been given one. It is in the trial bundle as a document that is not agreed. The Court allowed it into evidence. It shows that the above sum consists of one month's pay, severance pay calculated at 3 weeks for each...
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